Arthur Lazarus, the general counsel of the Association on American Indian Affairs (and the drafter of the original bill that became the Indian Child Welfare Act), filed amicus briefs in a suit by a Navajo tribal citizen challenging the power of the Secretary of the Interior to approve the Navajo Tribal Council’s ban on peyote use by the Native America Church. The case was filed as Oliver v. Seaton (D.D.C.):
The challenge really was against the Navajo ban, but Mr. Oliver challenged the Secretary’s approval of the ban, alleging that the approval violated the Exercise Clause. An important aspect of the AAIA’s amicus brief was that Talton v. Mayes, which seemingly held the federal Constitution did not regulate tribal power, did not govern the violation of “fundamental rights.”
There’s an interesting effort to compare tribal nations to the American territories here. We know from cases as recent as Puerto Rico v. Sanchez-Valleregarding Puerto Rico’s sovereignty that tribal sovereignty is more robust that Lazarus credits here. Note the conclusion, invoking the axiom that the “Constitution . . . follows the flag,” usually invoked in war crimes commission law like in the Guantanamo Bay cases.
Needless to say, the Navajo Nation was upset that the AAIA threw its support behind the Native American Church and not the tribe.
Mr. Oliver ultimately did not prevail. See Oliver v. Udall, 306 F.2d 819 (D.C. Cir. 1962).
This Note argues for a change in the Supreme Court’s treatment of free exercise claims over Indigenous sacred sites. First, this Note reasons that, in Lyng v. Northwest Indian Cemetery Protective Association, the Court set an impossibly high standard for parties bringing sacred site free exercise claims against the government. This insurmountable standard, masking itself as strict scrutiny, implicitly precludes any claimant from prevailing against a government action designated for a sacred site. Further, statutes aimed at protecting religious liberty have resolved little, leaving no choice but to rework the standard.
Next, this Note delves into three pre-existing theories from like-minded critics of Lyng, analyzing the pros and cons of their proposed approaches to sacred site free exercise claims. Lastly, this Note sets forth a novel test which modifies the framework courts currently use in free exercise jurisprudence. Appreciating the fundamental distinctions between religious land and religious acts, this new test is uniquely tailored to address claims over sacred lands. This proposed test seeks to (1) give religious claimants a realistic opportunity to meet their initial burden in court, (2) put sacred site claims on equal footing with other free exercise claims, and (3) address the Supreme Court’s concerns with overexpanding free exercise doctrine.
Turtle Talk 
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